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Department of Treasury, Bureau of Engraving and Printing (Respondent) and International Brotherhood of Electrical Workers, Local Union 121 (AFL-CIO)&nbsp;(Complainant)&nbsp;&nbsp;

[ v01 p603 ] 01:0603(69)CA
The decision of the Authority follows:

1 FLRA No. 69
DEPARTMENT OF TREASURY,
BUREAU OF ENGRAVING AND PRINTING
Respondent
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 121
(AFL-CIO)
Complainant
Assistant Secretary
Case No. 22-9031(CA)
DECISION AND ORDER
ON MARCH 7, 1979, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO.2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED
BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND REGULATIONS
(44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1A/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 22-9031(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 15, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MS. SALLY KRAUSE MARSHALL
LABOR RELATIONS OFFICER
BUREAU OF ENGRAVING AND PRINTING
15TH & C STREET, S.W.
WASHINGTON, D.C. 20028
FOR THE RESPONDENT
MR. LAWRENCE HOGAN
INTERNATIONAL REPRESENTATIVE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
6812 ELBROOK ROAD
LANHAM, MARYLAND 20801
FOR THE COMPLAINANT
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED ON MAY 16, 1978, UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY LOCAL UNION 121, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, (HEREINAFTER CALLED THE UNION OR
COMPLAINANT), AGAINST THE DEPARTMENT OF THE TREASURY, BUREAU OF
ENGRAVING AND PRINTING, (HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY),
A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
ADMINISTRATOR FOR THE PHILADELPHIA, PENNSYLVANIA REGION ON OCTOBER 12,
1978.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1)
AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTIONS IN DENYING
EMPLOYEE ISAAC STROZIER'S REQUEST FOR UNION REPRESENTATION AT A MEETING
CALLED FOR PURPOSES OF GIVING MR. STROZIER NOTICE OF A THIRTY DAY
SUSPENSION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON FEBRUARY 2, 1979 IN
WASHINGTON, D.C. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. /1/
UPON THE BASIS OF ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
FINDINGS OF FACT
THE ACTIVITY IS AN INDUSTRIAL SECURITY PRINTING PLANT RESPONSIBLE FOR
THE MANUFACTURE OF CURRENCY, POSTAGE STAMPS AND OTHER SECURITY ITEMS FOR
THE U.S. GOVERNMENT. APPROXIMATELY 3,300 PERSONS ARE EMPLOYED. THERE
ARE 25 DIFFERENT CRAFTS, A NON-CRAFT GROUP, A CLERICAL/TECHNICAL GROUP,
AND GUARDS, ORGANIZED INTO 17 BARGAINING UNITS. FIFTEEN
LABOR-MANAGEMENT AGREEMENTS ARE IN EFFECT.
LOCAL 121, IBEW, THE COMPLAINANT HEREIN, REPRESENTS APPROXIMATELY 85
ELECTRICIANS AND STATIONARY ENGINEERS IN SEPARATE UNITS. THERE ARE
SEPARATE COLLECTIVE BARGAINING AGREEMENTS FOR BOTH CRAFTS. THE INSTANT
COMPLAINT INVOLVES ONLY THE ELECTRICIANS.
ON NOVEMBER 21, 1977, MR. ISAAC STROZIER, AN ELECTRICIAN, HAD AN
ALTERCATION WITH MR. COOL, ACTING FOREMAN, ELECTRIC SHOP. THEREAFTER,
ON NOVEMBER 29, 1977 AND JANUARY 31, 1978, MR. G.W. HALL, SUPERINTENDENT
OF CONSTRUCTION AND MAINTENANCE, MET WITH MR. STROZIER AND HIS
DESIGNATED UNION REPRESENTATIVES, MR. CLEM AND MR. HAMLETT, FOR PURPOSES
OF CONDUCTING "FACT-FINDING MEETINGS."
ON FEBRUARY 17, 1978, AT APPROXIMATELY 1:10 P.M., SUPERINTENDENT HALL
RECEIVED A MEMORANDUM FROM RESPONDENT'S OFFICE OF INDUSTRIAL RELATIONS
WHICH AUTHORIZED SUPERINTENDENT HALL TO PRESENT A "NOTICE OF SUSPENSION"
TO MR. STROZIER FOR HIS ACTIVITIES WITH RESPECT TO FOREMAN COOL ON
NOVEMBER 21, 1977. THE MEMORANDUM, WHICH HAD THE "NOTICE OF SUSPENSION"
ATTACHED, INSTRUCTED SUPERINTENDENT HALL TO SERVE OR DELIVER THE "NOTICE
OF SUSPENSION" WITHIN 24 HOURS. INASMUCH AS SUPERINTENDENT HALL WAS
SCHEDULED TO GO ON ANNUAL LEAVE AT 1:30 P.M., HE IMMEDIATELY CONTACTED
FOREMAN COOL AND INSTRUCTED HIM TO BRING MR. STROZIER TO HIS OFFICE.
MR. STROZIER AND FOREMAN COOL APPEARED AT SUPERINTENDENT HALL'S OFFICE
AT 1:30 P.M. SUPERINTENDENT HALL INFORMED MR. STROZIER OF THE PURPOSE
OF THE MEETING AND PROCEEDED IN ACCORDANCE WITH HIS USUAL PRACTICE TO
READ THE "NOTICE OF SUSPENSION." MR. STROZIER NOTED THAT HE HAD BEEN
REPRESENTED BY MR. CLEM AND/OR MR. HAMLETT IN PRIOR MEETINGS CONCERNING
THE MATTER AND INDICATED THAT HE DESIRED THEIR PRESENCE. UPON BEING
INFORMED THAT NEITHER OF THE TWO GENTLEMEN WERE AT WORK AT THE TIME.
MR. STROZIER MADE NO FURTHER REQUEST FOR ANOTHER UNION REPRESENTATIVE
WHO WAS AVAILABLE. THEREAFTER, SUPERINTENDENT HALL MADE IT CLEAR THAT
HE DID NOT INTEND TO ENTER ANY DISCUSSION CONCERNING THE MERITS OF THE
"NOTICE OF SUSPENSION" AND MR. STROZIER DECLINED TO FORMALLY ACCEPT THE
"NOTICE OF SUSPENSION."
ACCORDING TO THE UNCONTROVERTED TESTIMONY OF SUPERINTENDENT HALL,
DURING THE PAST FIVE YEARS, UNION REPRESENTATIVES HAVE NEVER BEEN
PRESENT WHEN HE ISSUED APPROXIMATELY FOUR OR FIVE "NOTICE(S) OF FINAL
DECISION REGARDING SUSPENSION."
DISCUSSION AND CONCLUSIONS
IN UNITED STATES ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD,
A/SLMR NO. 787, A CASE INVOLVING FACTS ALMOST IDENTICAL TO THOSE HEREIN,
THE ASSISTANT SECRETARY AFFIRMED THE ADMINISTRATIVE LAW JUDGE'S DECISION
AND CONCLUDED THAT A MEETING FOR PURPOSES OF AWARDING A SUSPENSION TO AN
INDIVIDUAL EMPLOYEE
. . . WAS NOT A 'FORMAL DISCUSSION' WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER
BECAUSE IT DEALT SOLELY WITH THE INDIVIDUAL CONDUCT OF THE EMPLOYEE
INVOLVED AND THE
CONSEQUENTIAL MEASURES TO BE TAKEN AGAINST HIM ALONE. UNDER THESE
CIRCUMSTANCES, AND FOR THE
REASONS SET FORTH BY THE COUNCIL IN FLRC NO. 75P-2, I AGREE THAT THE
DENIAL OF REPRESENTATION
AT THE NONFORMAL MEETING HEREIN DID NOT CONSTITUTE A VIOLATION OF
SECTION 19(A)(1) AND (6) OF
THE ORDER.
IN DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK SHIPYARD, FLRC NO.
71A-141, DECEMBER 28, 1978, THE FEDERAL LABOR RELATIONS COUNCIL
CONCLUDED THAT UNION REPRESENTATIVES WERE NOT ENTITLED TO PARTICIPATE IN
FOUR MEETINGS CALLED FOR THE PURPOSE OF SEPARATELY INFORMING EACH OF
FOUR PROBATIONARY EMPLOYEES THAT THEY WERE BEING DISCHARGED FOR
"SLEEPING ON THE JOB." ALTHOUGH THE COUNCIL ACCEPTED THE ASSISTANT
SECRETARY'S CONCLUSION THAT THE MEETINGS WERE "FORMAL," THE COUNCIL
FOUND, CONTRARY TO THE ASSISTANT SECRETARY, THAT THE MEETINGS DID NOT
CONCERN "OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS IN THE UNIT"
AS USED IN SECTION 10(E) OF THE ORDER. IN REACHING ITS CONCLUSION THE
COUNCIL STATED:
THUS, THE ISSUE HERE IS ULTIMATELY NARROWED TO WHETHER THE SUBJECT
MEETINGS CONCERNED
"OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT." AS PREVIOUSLY
INDICATED, THE MEETINGS WERE CALLED FOR THE SPECIFIC PURPOSE OF
NOTIFYING THE FOUR
PROBATIONERS THAT AGENCY MANAGEMENT HAD DECIDED TO TERMINATE THEIR
EMPLOYMENT. IN THIS
REGARD, THE INSTANT APPEAL BEARS A SIMILARITY TO THE COUNCIL'S
LOUISVILLE DECISION, (UNITED
STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE,
KENTUCKY, A/SLMR NO. 400, 3
FLRC 686 (FLRC NO. 74A-54 (OCT. 23 1975), REPORT NO. 87)), WHEREIN
THE TERMINATION OF AN
EMPLOYEE EXCLUSIVELY REPRESENTED BY A LABOR ORGANIZATION ALSO WAS
INVOLVED. IN LOUISVILLE,
AFTER A UNIT EMPLOYEE WAS NOTIFIED OF HIS PROPOSED REMOVAL, THE
EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE SOUGHT AN EXTENSION OF THE TIME LIMIT SPECIFIED FOR
REPLY TO THE NOTICE ON THE
GROUND THAT THE EMPLOYEE HAD BEEN HOSPITALIZED, BUT THE REQUEST WAS
DENIED. THE COUNCIL,
INTERPRETING THE FIRST SENTENCE OF SECTION 10(E) CONCLUDED THAT AN
AGENCY'S FAILURE TO
RECOGNIZE A LABOR ORGNIZATION'S STATUS AS AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION
PROCEEDING, UNTIL THE EMPLOYEE DESIGNATES ANOTHER REPRESENTATIVE,
DOES NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE. IN ITS DECISION (3 FLRC 686 AT 691), THE
COUNCIL RULED THAT ADVERSE
ACTION PROCEEDINGS, "WHICH ARE FUNDAMENTALLY PERSONAL TO THE
INDIVIDUAL AND ONLY REMOTELY
RELATED TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES, ARE NOT
AUTOMATICALLY WITHIN THE SCOPE OF
THE EXCLUSIVE REPRESENTATIVE'S 10(E) RIGHTS, WHICH ARE PROTECTED BY
THE ORDER." SIMILARLY, IN
THE INSTANT CASE, WHILE THE EMPLOYEES INVOLVED ARE PROBATIONARY
EMPLOYEES POSSESSING LIMITED
STATUTORY APPEAL RIGHTS (RATHER THAN THE CAREER EMPLOYEE IN
LOUISVILLE), THE SUBJECT OF THE
MEETINGS IN BOTH CASES WAS NEVERTHELESS "FUNDAMENTALLY PERSONAL TO
THE INDIVIDUAL(S) AND ONLY
REMOTELY RELATED TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES." AS SUCH,
IN THE
COUNCIL' OPINION, THE MEETINGS MAY NOT PROPERLY BE FOUND TO CONCERN
"OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT" WITHIN THE
MEANING OF SECTION 10(E) OF
THE ORDER.
ACCORDINGLY, AS THE "FORMAL DISCUSSIONS" HEREIN DID NOT CONCERN
"GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN
THE UNIT" UNDER THE LAST SENTENCE OF SECTION 10(E), THE EXCLUSIVE
REPRESENTATIVE HAD NO RIGHT
GUARANTEED BY THE ORDER TO BE REPRESENTED AT THE MEETINGS IN
QUESTION, AND THE INDIVIDUAL
PROBATIONARY EMPLOYEES THEREFORE HAD NO DERIVATIVE RIGHT TO UNION
REPRESENTATION IN THE
CIRCUMSTANCES OF THIS CASE. CONSEQUENTLY, THE ASSISTANT SECRETARY'S
CONCLUSION THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER HEREIN BY
DENYING UNION REPRESENTATION
TO FOUR PROBATIONARY EMPLOYEES, BASED UPON HIS INTERPRETATION OF THE
REQUIREMENTS OF SECTION
10(E), IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER
AND MUST BE SET ASIDE.
INASMUCH AS THE MEETING INVOLVED IN THE INSTANT PROCEEDING WAS
CONCERNED SOLELY WITH MR. STROZIER'S INDIVIDUAL SUSPENSION AND BORE NO
RELATION TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES, I AM CONSTRAINED TO
FIND, IN ACCORDANCE WITH THE AFORECITED AUTHORITIES, THAT RESPONDENT'S
ALLEGED FAILURE TO ACCORD MR. STROZIER UNION REPRESENTATION AT THE
FEBRUARY 17, 1978, MEETING WAS NOT VIOLATIVE OF SECTIONS 19(A)(1) AND
(6) OF THE ORDER. ACCORDINGLY, AND IN THE ABSENCE OF ANY EVIDENCE THAT
THE ALLEGED DENIAL OF REPRESENTATION WAS CONTRARY TO AN ESTABLISHED
PRACTICE, I SHALL ORDER THAT THE COMPLAINT BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
DISMISSED.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 7, 1979
WASHINGTON, D.C.
BSS:LE
/1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/1/ ALTHOUGH COUNSEL FOR THE RESPONDENT IN HER OPENING STATEMENT
ALLUDED TO A POSSIBLE 19(D) DEFENSE PREDICATED UPON THE FACT THAT MR.
STROZIER HAD ELECTED TO APPEAL HIS SUSPENSION TO THE FEDERAL EMPLOYEE
APPEALS AUTHORITY, NO EVIDENCE BEARING THEREON WAS FORMALLY SUBMITTED
DURING THE HEARING. ACCORDINGLY, THE MERITS OF THE ALLEGED 19(D)
DEFENSE WILL NOT BE ADDRESSED IN THE INSTANT DECISION.